Curry v. Express Wash Operations, LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:24-cv-00178-MR-WCM
KENNETH CURRY, individually and )
on behalf of a class of similarly )
situated persons, )
) MEMORANDUM AND
Plaintiffs, ) RECOMMENDATION
v. )
)
EXPRESS WASH OPERATIONS, )
LLC, d/b/a WHISTLE EXPRESS )
CAR WASH, )
)
Defendant. )
_______________________________
This matter is before the court on Defendant’s Motion to Dismiss
Amended Complaint (the “Motion to Dismiss,” Doc. 69).
I. Background
On June 24, 2024, Kenneth Curry (“Plaintiff”), proceeding individually
and on behalf of a purported class, filed his original Complaint against Express
Wash Operations, LLC, doing business as Whistle Express Car Wash
(“Defendant”). Doc. 1. Plaintiff asserted that this Court could exercise subject
matter jurisdiction over his claims pursuant to the Class Action Fairness Act
of 2005 (“CAFA”). 28 U.S.C. § 1332(d)(2).
On June 3, 2025, Plaintiff filed a First Amended Class Action Complaint
(the “Amended Complaint,” Doc. 58). The Amended Complaint again invokes
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CAFA as the basis for this Court’s subject matter jurisdiction, and asserts
claims based on North Carolina law, including North Carolina’s Automatic
Renewal Statute (the “Automatic Renewal Statute,” N.C.G.S. § 75-41).
On June 24, 2025, Defendant filed the Motion to Dismiss. Doc. 69.
Plaintiff has responded and Defendant has replied. Docs. 70, 71.
II. Allegations in the Amended Complaint
Defendant operates car wash locations, including “26 or more car wash
facilities in North Carolina where consumers can purchase a car wash via self-
service touchscreen drive-through kiosks.” Doc. 58 at ¶¶ 17, 2. Plaintiff alleges
that in 2002, Defendant operated 117 car washes throughout the country and
had “surpassed 150,000 memberships.” Doc. 58 at ¶¶ 30, 22.
Plaintiff contends that the kiosks are programmed to save a customer’s
payment information and enroll the customer, without the customer’s
knowledge, in an automatically renewing “Wash Club” membership, which
results in the customer being charged a monthly fee without notice to the
customer or the customer’s consent. Plaintiff asserts that Defendant does not
make the disclosures required under North Carolina law at the time of
enrollment and does not obtain the customer’s contact information necessary
to provide later notices required pursuant to the Automatic Renewal Statute.
Doc. 58 at ¶ 3; see also id. at ¶ 21. As a result, Plaintiff asserts, upon
information and belief, that “hundreds if not thousands of customers have
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complained and requested cancelation of a ‘Wash Club’ membership they were
unwittingly enrolled in at Express Wash’s North Carolina locations.” Doc. 58
at ¶ 35.
With respect to Plaintiff himself, he alleges that on October 2, 2023, he
visited Defendant’s car wash in Murphy, North Carolina with the intention of
purchasing a single car wash. Doc. 58 at ¶ 46. Using the touchscreen kiosk,
Plaintiff paid $21.40 for a single wash. Doc. 58 at ¶ 47. Plaintiff later
discovered, however, that Defendant “had been charging his credit card for six
months, in the amount of $42.80 monthly…,” for a total of $256.80, for a Wash
Club membership. Doc. 58 at ¶¶ 48-49. Upon discovering the Wash Club
charges, Plaintiff attempted to contact Defendant’s Murphy location to dispute
the charges. Doc. 58 at ¶ 54. After multiple phone calls, Plaintiff was able to
speak with a manager at that location, who advised Plaintiff that enrollment
in the Wash Club was a common customer complaint but that she was unable
to refund the full amount of Wash Club charges Plaintiff had incurred. Doc. 58
at ¶ 55. Plaintiff was forced to cancel his credit card in order to stop the
monthly charges and has not been refunded the $256.80 he contends he was
improperly charged. Doc. 58 at ¶ 58.
Plaintiff seeks certification of the following class:
All persons, entities or companies in the United States
who, within the applicable statute of limitations, up to
and including the date of final judgment in this action,
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purchased a car wash at one of the Defendant’s North
Carolina car wash locations and were subsequently
charged automatic renewal fees.
Doc. 58 at ¶ 61.
The proposed class definition excludes, among others, “all persons who
received full refunds from [Defendant] after being charged any monthly
payments for membership in the Defendant’s ‘Wash Club’” and “all persons
who used their membership in the ‘Wash Club’ after being charged any
monthly membership payments.” Doc. 58 at ¶ 63.
III. Legal Standard
A. Rule 12(b)(1)
A motion to dismiss made pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure addresses whether the court has subject-matter jurisdiction
to hear the dispute. See Fed. R. Civ. P. 12(b)(1). A court is under an obligation
to determine whether subject matter jurisdiction is proper regardless of
whether a party raises the issue. Wye Oak Tech., Inc. v. Republic of Iraq, 666
F.3d 205, 218 (4th Cir.2011).
B. Rule 12(b)(6)
When considering a motion made pursuant to Rule 12(b)(6), the court
accepts the allegations in the complaint as true and construes them in the light
most favorable to the plaintiff. See Nemet Chevrolet, Ltd. v.
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Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
The court, however, is not required to accept “legal conclusions, elements
of a cause of action, and bare assertions devoid of further factual
enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d
at 192. That is, while “detailed factual allegations” are not required, the
complaint must contain “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
Consumeraffairs.com, 591 F.3d at 255. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); accord Consumeraffairs.com, 591 F.3d at 255.
In short, the well-pled factual allegations must move a plaintiff’s claim from
conceivable to plausible. Twombly, 550 U.S. at 570; Consumeraffairs.com, 591
F.3d at 256.
IV. Discussion
A. CAFA Jurisdiction
Jurisdiction exists under CAFA when an action meets three
requirements: “(1) the putative class has more than 100 members
(numerosity); (2) the amount in controversy exceeds five million dollars,
exclusive of interest and costs (amount in controversy); and (3) the parties are
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minimally diverse in citizenship (minimal diversity).” Dominion Energy, Inc.
v. City of Warren Police and Fire Retirement Sys., 928 F.3d 325, 330 (4th Cir.
2019) (citing 28 U.S.C. §§ 1332(d)(2), (5)(B)).
With respect to the second component – the amount in controversy –
CAFA “tells the District Court to determine whether it has jurisdiction by
adding up the value of the claim of each person who falls within the definition
of [the] proposed class and determine whether the resulting sum exceeds $5
million.” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013).
As the party invoking federal jurisdiction here, Plaintiff bears the
burden of demonstrating, by a preponderance of the evidence, that this Court
has jurisdiction under CAFA. Strawn v. AT & T Mobility LLC, 530 F.3d 293,
296 (4th Cir. 2008) (“a party seeking to adjudicate a matter in federal court
must allege and, when challenged, must demonstrate the federal court's
jurisdiction over the matter”); Palkovic v. Countrywide Home Loans, Inc., No.
5:14-CV-102, 2014 WL 5449687, at *1 (N.D.W. Va. Oct. 24, 2014) (“The
removing party must prove these three elements by a preponderance of the
evidence.”) (citing Johnson v. Advance Am.
, 549 F.3d 932, 935 (4th Cir. 2008)).
Defendant contends that the Amended Complaint does not demonstrate
that CAFA jurisdiction exists. Specifically, Defendant argues that Plaintiff has
not satisfied the first and second elements, as Plaintiff has failed to plead any
non-conclusory facts that would establish the putative class would meet the
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100-member and $5,000,000 amount in controversy requirements.1
In response, Plaintiff points out that Defendant has admitted to
operating at least 23 locations in North Carolina, and that as of January 2025,
Defendant was charging a monthly Wash Club fee to “over 2000” customers at
its Murphy location. See Doc. 70 at 4 (citing Defendant’s Answer to original
complaint, Doc. 8, and the deposition testimony of Jamie Nicole Zimmerman,
Doc. 71-1).2
Plaintiff contends that the number of potential class members exceeds
100 because, assuming that each of Defendant’s 23 North Carolina locations
has as many Wash Club members as Defendant’s Murphy location (2000), the
entire class would be made up of approximately 46,000 individuals. Further,
Plaintiff asserts that, assuming a class of 46,000 individuals and a monthly
charge of $42.80, the amount in controversy for just one month of the class
period would be $1,968,800. Doc. 70 at 8. Reasoning that the class period began
on June 24, 2020 (four years prior to the filing of the original Complaint),
Plaintiff argues that amount in controversy well exceeds the $5,000,000
1 Defendant does not challenge Plaintiff’s assertion that there is minimal diversity
between the parties.
2 Here, both sides reference deposition testimony in connection with their arguments,
and this information is appropriately considered. See Evans v. United States, 105
F.4th 606, 615 (4th Cir. 2024) (when a factual challenge pursuant to Rule 12(b)(1) is
made, “the district court need not assume the truth of the allegations, may decide
disputed issues of fact, and may venture outside of the pleadings to resolve the
challenge.”); Scott v. Cricket Commc'ns, LLC, 865 F.3d 189, 194 (4th Cir. 2017).
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jurisdictional threshold.
In reply, Defendant argues that Plaintiff’s calculations, “at best” indicate
the total existing Wash Club memberships in North Carolina but that this
number is “overstated because it includes non-class-members who were not
mistaken, purchased exactly what they intended, and have used their
memberships.” Doc. 71 at 3.
The undersigned finds Defendant’s position to be persuasive.
In Strawn v. AT & T Mobility LLC, 530 F.3d 293 (4th Cir. 2008), two
customers challenged the defendant’s alleged practice of automatically
enrolling new cellular customers in a “Roadside Assistance” program and
automatically charging each customer $2.99 a month if the customer did not
opt out. The complaint defined the purported class as:
all consumers who: (1) purchased [an AT & T cellular]
account in the state of West Virginia; and (2) were
charged a $2.99 monthly charge for the Roadside
Assistance service	
without ever requesting or
enrolling for said service.
530 F.3d at 299 (emphasis added in Strawn).
The defendant removed the case to federal court and the plaintiffs
successfully moved to remand, arguing that the defendant (as the party
asserting federal jurisdiction) could not demonstrate CAFA jurisdiction
adequately. Specifically, the plaintiffs asserted that their proposed class
included only those customers who “unwillingly” enrolled in the Roadside
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Assistance program and excluded customers who, even though automatically
enrolled in the program, chose to retain the service after being charged the
monthly fee. Id. at 298.
On appeal, the Fourth Circuit vacated the district court’s decision and
explained that the plaintiffs’ complaint challenged the defendant’s practice of
“bundling” the Roadside Assistance service with new cellular telephone service
and that the proposed class was “not defined as those willing or unwilling to
retain the program, but rather as those who ‘were not given an option.’” Id. at
298-299. Because the complaint challenged the
initial transaction and because
the proposed class did not distinguish “between automatically-enrolled
customers who, upon eventually discovering the $2.99 charge, chose to ratify
it and retain the service and those who, upon discovering the charges, became
‘unwilling’ customers,” the court concluded that the defendant’s affidavit
stating that approximately 58,000 individual consumers in West Virginia
remained enrolled in the Roadside Assistance program, and calculating the
damage per person to be $200, was sufficient to establish that the amount in
controversy exceeded the jurisdictional requirement of CAFA.
In some respects, the allegations in the Amended Complaint resemble
those at issue in Strawn. The Amended Complaint alleges that the proposed
class members were “illegally enrolled” in the Wash Club and seeks to certify
a class of individuals who “purchased a car wash at one of the Defendant’s
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North Carolina car wash locations and were subsequently charged automatic
renewal fees.” Doc. 58 at ¶¶ 1, 61. Further, Plaintiff asserts claims that appear
to be based on the initial transaction – including that Defendant’s kiosks failed
to disclose specific information at the time of purchase in violation of the
Automatic Renewal Statute. See Doc. 58 at ¶ 74.
But unlike the class definition in Strawn, Plaintiff’s proposed class
explicitly excludes those customers who either (1) received full refunds from
Defendant after being charged the monthly fee or (2) “used their membership
in the ‘Wash Club’ after being charged any monthly membership payments.”
Doc. 58 at ¶ 63. In other words, the class does not include persons who were
unwittingly enrolled in the Wash Club but later objected and received a full
refund of the monthly payments they had made, or persons who later “used”
their Wash Club membership, presumably either because they intended to
enroll in the first place or, even if they did not, decided to keep and use the
membership.
Assuming,
arguendo, that Plaintiff correctly estimates there are 46,000
members of the Wash Club in North Carolina, Plaintiff has not provided
information from which the Court could reasonably determine what portion of
that number falls within the proposed class definition. That is, even if there
are 46,000 Wash Club members in North Carolina, Plaintiff has not
sufficiently shown how many of those members should be disregarded because
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they either received a full refund or used their Wash Club membership. See
Palkovic v. Countrywide Home Loans, Inc., No. 5:14-CV-102, 2014 WL
5449687, at *3 (N.D.W. Va. Oct. 24, 2014) (distinguishing Strawn where the
plaintiffs’ proposed class definition was “clearly and unambiguously limited to
those loans closed by persons not authorized to practice law in West Virginia”
and there was no information “as to the number of loans which may have been
closed in such manner” such that the defendants (who had removed the matter
to federal court) failed to establish that the putative class reached the requisite
numerosity for CAFA jurisdiction and further finding, “because the amount in
controversy will ultimately be intertwined with the number of allegedly
improper loans,” that the assertion that the amount in controversy exceeded 5
million dollars was “highly speculative”).
Accordingly, the undersigned will recommend that the claims set out in
the Amended Complaint be dismissed without prejudice.
B. Failure to State a Claim
Defendant additionally argues that the Amended Complaint fails to
state a claim. However, in light of the recommendation with regard to subject
matter jurisdiction, described above, the undersigned does not reach the merits
of Defendant’s arguments pursuant to Rule 12(b)(6). S. Walk at Broadlands
Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185
(4th Cir. 2013) (a dismissal for lack of jurisdiction must be without prejudice,
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“because a court that lacks jurisdiction has no power to adjudicate and dispose
of a claim on the merits”).
V. Recommendation
For the reasons set forth above, the undersigned RESPECTFULLY
RECOMMENDS that Defendant’s Motion to Dismiss Amended Complaint
(Doc. 69) be GRANTED IN PART and that Plaintiff’s Amended Complaint be
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
Signed: January 28, 2026
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Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States
Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the presiding District Judge will preclude the parties
from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140
(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
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